QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy Judge of the High Court
| Mr Ainsley David Powell
|- and -
|Ms Jane Shergar Irani
Secretary of State for Environment, Food and Rural Affairs
Doncaster Metropolitan Borough Council
Philip Coppel (instructed by the Solicitor to the Department for Environment Food and Rural Affairs) for the Defendants
Hearing dates: 20 February 2009
Crown Copyright ©
Michael Supperstone QC:
The Legislative Framework
"As regards every definitive map and statement, the surveying authority shall …
(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence before that date, of any of the events specified in subsection (3); and
(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event".
"(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path … ;
(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows
(i) that a right of way which is not shown in the map and statements subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies."
"(1) Where a way over any land, other than a way of such character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by notice such as is mentioned in subsection (3) below or otherwise.
(3) Where the owner of the land over any such way as aforesaid passes –
(a) has erected in such a manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and
(b) has maintained the notice after the 1st January 1934 or any later date on which it was erected,
the notice in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway."
"The modifications which may be made by an order under subsection (2) shall include the addition to the statement of particulars as to –
(a) the position and width of any public path … which is to be shown on the map;"
Section 53(5) provides:
"Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection."
Subsection (6) is to like effect in relation to events falling within sub-paragraph (a) of subsection (3).
"(1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of sections 53 and 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph.
(2) On any such application the High Court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order either generally or in so far as it affects the interest of the applicant."
"The inspector may –
(a) proceed with the inquiry in the absence of any person entitled or permitted to appear at it;
(b) take into account any written representations, evidence or any other document received by him from any person before the inquiry opens or during the inquiry, provided he discloses it at the inquiry; and
(c) from time to time adjourn the inquiry."
"In your letter to us of 8th November 2007 you stated that your clients would continue with the appeal until the matter was resolved.
We are disappointed to note, therefore, from the Council's letter that your clients did not submit evidence to the Planning Inspectorate in support of their objections of the claim by the 7th April deadline.
Can you please offer us an explanation as to why they did not do so and can you also confirm that they will now do so despite the obvious difficulties in introducing evidence at this stage."
On 30 April 2008, not having received a reply to their letter of 22 April 2008, Bell Dallman wrote further to Messrs Atteys, stating,
1. What steps and actions your clients have taken to date to contest the claim for a public footpath?
2. Why have they failed to keep our clients informed of the situation, particularly as to the deadline for submission of evidence to the Planning Inspectorate, thus depriving our clients the opportunity of putting their own evidence forward?
Our clients are concerned that they have been misled by your clients into entering into the contract to purchase the above property and are presently considering their position".
"We confirm that we are no longer in receipt of instructions with regard to this matter and should be obliged if you would address all future correspondence directly to HSL Developments Ltd."
Bell Dallman did write directly to HSL, but did not receive a response.
"13. In order to properly prepare his case, Mr Powell needs to do the following:
(a) Investigate whether the 1967 Order diverting the path from the site of his property was implemented in practice or whether the use of the original definitive line continued as before. Having only purchased the property at 6 Vicarage Close in December 2007, Mr Powell has no personal knowledge of the history of the site and surrounding area. Those advising Mr Powell need to establish whether and the extent to which members of the public were prevented from using the footpath following the making of the 1967 Diversion Order. In particular they need to consider the evidence as to the actions of the Church during the relevant period.
(b) Consider the evidence already available which indicates there was a challenge to public use including:
(i) the 1967 Order diverting the right of way,
(ii) a hole in the wall made at the relevant point to accommodate the revised route …
(iii) the claim referred to by the Council in its Statement of Case that notices challenging public use were erected by the Church and subsequently vandalised …
(c) Seek disclosure of relevant papers from HSL Development Ltd who had undertaken to pursue the objection vigorously.
(d) Consider and test the evidence put forward by members of the public in light of the outcome of research and investigation under (a), (b) and (c) above including the location and direction of the footpath sign which pointed up the alley by the side of the Kissing Gate.
(e) Respond to the legal arguments raised by the Council in relation to the re-establishment of public way rights and the legal significance of the 1967 Diversion Order as evidence of a challenge to public use.
17. Counsel has been instructed to attend the Inquiry but cannot properly represent Mr Powell if the adjournment is refused and the Inquiry proceeds. Members of the public can not be tested on their statements in the absence of the research and investigations outlined above. Mr Powell will be present at the opening of the Inquiry on 20 May 2008, but cannot give evidence about historical matters as he only purchased the property in December 2007. The outcome of the investigations and research outlined above may lead Mr Powell to seek to call witnesses to give evidence. Given the circumstances of this matter, it is submitted that the Inspector cannot properly come to a decision on the merits of confirming the Order. Further there are no procedural or other mechanisms available to the Inspector by which he can mitigate the unfairness to Mr Powell of proceeding with the Inquiry."
The Decision of the Inspector
The Inspector stated in his decision letter ("the decision letter"), in so far as is material, as follows:
2. The claimed public footpath commences on Footpath 13 Hatfield at A on the Order map, a point within St. Lawrence's churchyard, and runs in a generally north-easterly direction for approximately 35 metres to point B, to connect with another part of Footpath 13. Until 1967, the claimed route formed part of Footpath 13, but had been diverted by Order upon the request of the Vicar of Hatfield of the day, the Rev. Greathead. The current definitive line of Footpath 13 follows the right angle turn shown on the Order map between points A and B. The claimed route, together with the remainder of Footpath 13 running away from St. Lawrence's churchyard is known locally as Spider Alley.
3. Until 2006, the land crossed by the claimed footpath formed part of the land belonging to St Lawrence's vicarage. The vicarage grounds were sold to HSL Developments Ltd ("HSL") for housing development, and the land crossed by the claimed footpath now forms part of the rear garden of No.6 Vicarage Close. Mr A.D. Powell purchased this property from HSL in December 2007.
4. There was only one statutory objector to the Order. This objection was made on behalf of HSL on 16 October 2007. …
12. … Whereas the Council had indicated its consent to a written request for an adjournment that had been made to the Planning Inspectorate prior to the opening of the Inquiry, it took a different view with regard to the verbal application at the Inquiry as it witnesses may be inconvenienced by an adjournment.
13. In response to my questions, Mr Powell stated that he had been informed by the developer of the footpath claim when he commenced negotiations to buy his property in October 2007. He had not undertaken any research work in the local area himself, as he employed professional advisers to undertake such matters on his behalf. Although it was submitted that an adjournment was required because Mr Powell had not had adequate time to prepare his case, it is clear to me that Mr Powell, or his representatives, had had approximately 8 months in which to take an active part in the proceedings relating to an application which had the potential to severely impact upon his newly-purchased property.
14. I declined the request for an adjournment. Although Mr Powell or his representatives may have missed the statutory deadline (17 October 2007) for making an objection to the Order, there was adequate opportunity for him or his representatives to engage in the process by either inquiring of the Council as to the procedure that would be followed, or by contacting the Planning Inspectorate directly to make a similar enquiry. There is no evidence to suggest that Mr Powell or his representatives took any such action; I agree with the Council that it is odd that reliance was placed upon HSL to pursue an objection when that company had no further interest in the land at issue following its sale in December 2007.
15. If the first Mr Powell had known of the application was when he had received the Council's courtesy letter in mid-April, his request for an adjournment on the grounds stated would have carried greater weight, and I would have been inclined to adjourn for him to take advice. In the circumstances of this case, however, I do not agree that Mr Powell found himself in a situation that was not of his own making.
16. I give no weight to the issue of the impact of the Order, if confirmed, would have upon Mr Powell's property; such issues are irrelevant in relation to the determination of an Order made under Section 53 of the 1981 Act. …
17. I consider that Mr Powell had the opportunity of a fair hearing at the Inquiry; the fact that his representatives had not engaged in the process at an earlier stage clearly compromised Mr Powell's ability to take part in the Inquiry for which other parties had prepared. Although it was submitted that it would be necessary to test the Council's user evidence and to question the approach taken by the landowner during the relevant 20-year period, the opportunity to do so was not taken up by Mr Powell or his Counsel at the Inquiry.
The date on which the right of the public to use the claimed footpath was brought into question
25. … In the absence of any evidence to the contrary I accept that use of the claimed path was brought into question in 2006 by the erection of fencing at A and B, and conclude that the 20-year period under consideration for the purposes of Section 31 of the 1980 Act is from May 1986 – May 2006.
Whether the claimed footpath was used by the public as a right and without interruption for a period of not less than 20 years ending on the date the public right was brought into question
28. All the witnesses spoke of the claimed path as having been open and available for public use until 2006.
32. Although none of the evidence of use given was challenged, I briefly report what was put to me as it struck me as being cogent and consistent evidence of the path in question having been used by the public for a period in excess of the 20 years under consideration.
35. … I conclude that the evidence demonstrates unrestricted and unchallenged use of the Order route as of right throughout the 20-year period in question and is sufficient to raise a presumption of the dedication of the Order route as a public footpath.
Whether there is sufficient evidence that there was during this 20-year period no intention to dedicate the claimed footpath
39. … There is no evidence before me that an intention not to dedicate a footpath over the Order route was communicated in any way to the public whilst Rev. Greathead held office.
40. Similarly, more importantly for the purposes of determining this Order, there is no evidence that Rev. Greathead's successors have made the public aware that there was no intention to dedicate the path. …
42. Having given consideration to these matters I concur with the Council's analysis and conclude that there is insufficient evidence of the lack of intention to dedicate a public footpath over the claimed route during the 20-year period under consideration.
43. I have concluded that the evidence adduced by the Council is sufficient to raise a presumption of dedication of the public footpath and that there is insufficient evidence of a lack of intention to dedicate a public right of way. It follows that I am satisfied that, on a balance of probabilities, a public right of way which is not shown in the definitive map and statement subsists over the Order route.
44. … I conclude that the Order should be confirmed."
The Parties' submissions
Issue 1: The Refusal of an Adjournment
"… when one is considering questions of natural justice, one ought to have regard to the position of the lay client personally and not simply to that of his legal advisers as his representatives.
In my view I ought to answer the question, "Was an adjournment necessary for the appellant to present his case?" with the emphasis on the appellant in the personal sense."
Issue 2: The Width of the Footpath